By Hameed Ajibola Jimoh Esq.
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In Nigeria, fundamental rights are rights guaranteed in the Constitution of the Federal Republic of Nigeria, 1999 (as amended)- herein after referred to as the Constitution, and they are rights which every person is entitled to, when he is not subject to the disabilities enumerated in the Constitution to be enjoyed by virtue of being a human being. They are basic that they are entrenched in a particular chapter of the Constitution. See: Odogwu v A.G. Federation (1999) 6 NWLR (pt. 455) p. 508, Ratio 6. This paper aims at a brief study of the fundamental rights laws and their enforcement as regard appeals thereto.
Also, ‘Human rights’ or ‘Fundamental Human Rights’ are provided for by the Constitution, the African Charter on Human and Peoples’ Rights-herein after referred to as ACHPR, United Nations Universal Declaration of Human Rights, among other laws. These are general human rights laws. There are other laws that are specific human rights laws such as: (i) Anti-torture Act, LFN, 2017 (ii) Freedom of Information Act, LFN, 2011 (iii) Child’s Rights Act, 2003 (iv) Fundamental Rights (Enforcement Procedure) Rules, 2009- herein after referred to as FREPR, among others. Furthermore, under the Constitution, Chapter IV has laid down all the fundamental rights that every person as a Nigerian citizen is entitled to. Also, under the Constitution, section 46(1) and Order II Rule I of the Fundamental Rights (Enforcement Procedure) Rules, 2009-herein after referred to as the FREPR, provides that ‘any person who alleges that any of the provisions of the Constitution in Chapter IV has been or is likely to be contravened in any State in relation to him may apply to a High Court for redress. Also, Chapter II of the Constitution contains some human rights which are not generally justiciable concerning some judicial proceedings on that issue unless there is a statute or another part of the Constitution giving the force of law to them or any of them. Furthermore, under the ACHPR, Part II, Chapter I has established the African Commission on Human and Peoples’ Rights under Article 30, to promote human and peoples’ rights and ensure their protection in Africa. Furthermore, the Economic Community for West African State-herein after referred to as ECOWAS-, Court of Justice established pursuant to the ECOWAS protocol can also be utilized on the enforcement of human and peoples’ rights. Furthermore, section 46(3) of the Constitution empowers the Chief Justice of Nigeria-herein after referred to as the CJN- to make rules i.e. FREPR. In my humble submission, these Rules are only for the enforcement of fundamental rights in the High Courts in Nigeria. What of the appeals arising from the decisions of the High Courts in fundamental rights actions?! That is where this paper humbly calls and or appeals for an amendment to the provisions of the section 46(3) of the Constitution to empower the CJN to also make Rules on appeals arising from the decisions of the trial courts covering the Court of Appeal of Nigeria and the Supreme Court of Nigeria in the interest of manifest justice. More so, a number of fundamental rights enforcement suits have been delayed and or held stalled at either the Court of Appeal or the Supreme Court (respectfully, it is worst at the Supreme Court with its proceedings lasting for very long years until only God knows when)! Even from personal experience, I have appeal on fundamental rights at the Court of Appeal filed since year 2018 till date (i.e. over five (5) years now and not yet heard but pending). I was in this January, 2024, given a further hearing date to be in December, 2024, for hearing (that is if the court will sit to hear the appeal without another adjournment)! A fundamental rights appeal?! Hence, this paper has chosen the above headed topic.
As I stated above in this paper, the Constitution has laid down the Rules for enforcing the rights guaranteed under Chapter IV of the Constitution and under the African Charter on Human and People’s Rights respectively and or jointly (as the case might be) and the Rules laid down are codified and named Fundamental Rights (Enforcement Procedure) Rules, 2009, which is made pursuant to the Constitution. In the case of Abia State University, Uturu v Anyaibe (1996) 3 NWLR (pt. 439) 646 at 661, per Katsina-Alu, JCA (as he then was) held that the Fundamental Rights (Enforcement Procedure) Rules made pursuant to the Constitution, have the force of law as the Constitution itself; and overrides the provisions of any other enactment to the contrary. In which case, such a provision has equal force of law as the Constitution itself. Furthermore, I humbly submit that fundamental rights suits are sui generis (i.e. of their own Rules and Procedures) known as the ‘Fundamental Rights (Enforcement Procedure) Rules, 2009’. The following cases are noteworthy: in the case of Enukeme v Mazi (2015)17 NWLR (1488)411 C.A. at page 434 paras. A-C, Mbaba, J.C.A. (delivering the leading judgment), held thus ‘I must start by stating the obvious, that Fundamental Rights Enforcement Procedure is sui generis, being specially and specifically designed with its own unique rules by the Constitution, to address issues of fundamental rights of persons protected under the Constitution. Of course, consideration of issues founded on breaches of fundamental rights in this case must be handled within the exclusive confines of the Fundamental Rights (Enforcement Procedure) Rules, 2009, which actually came to correct some perceived wrongs and hardship which the 1979 Rules (fashioned on the 1979 Constitution) caused to applicants seeking enforcement of their fundamental rights, especially in the areas of adherence to undue technicalities and delays in determining applications’. The case of Loveday v Comptroller, Fed. Prisons Aba (2013) 18 NWLR (pt. 1386) 379 C.A. is also humbly referred to. Also, Furthermore, the Supreme Court of Nigeria in the case of Odogwu v A.G. of the Federation (1999) 6 NWLR (PT. 455) P. 508 Ratio 6, also defined fundamental human rights thus ‘A fundamental human right is a right guaranteed in the Nigerian constitution and it is a right which every person is entitled to, when he is not subject to the disabilities enumerated in the constitution to be enjoyed by virtue of being a human being. They are so basic and fundamental that they are entrenched in a particular chapter of the constitution’. Furthermore, the Supreme Court of Nigeria has held in the case of Jim-Jaja v C.O.P. Rivers State (2013)6 NWLR (Pt. 1350) 225 SC. (page 254 paragraphs E-F and F-G) on the objectives of the procedure of fundamental human right thus ‘The procedure for the enforcement of the Fundamental Human Right was specifically promulgated to protect the Nigerian’s fundamental rights from abuse and violation by authorities and persons. When a breach of the right is proved, the victim is entitled to compensation even if no specific amount is claimed’.
Therefore, in a fundamental rights enforcement suit (which is sui generis), ‘jurisdiction’ emanates from the provisions of section 46 (1) of the constitution of the Federal Republic of Nigeria, 1999 (as amended) which provides thus ‘Any person who alleges that any of the provisions of this Chapter has been, is being or likely to be contravened in any State in relation to him, may apply to a High Court in that State for redress’. Also, Order II Rule I of the Fundamental Rights (Enforcement Procedure) Rules, 2009-herein after referred to as FREPR is humbly referred to. And ‘Court’ has been defined by Order I Rule 2 of the FREPR to mean ‘the Federal High Court or the High Court of a State or the High Court of the Federal Capital Territory, Abuja.’ From the foregoing, it is clear that only a ‘High Court’ has jurisdiction where an alleged breach of fundamental rights of any person has occurred. Now, enforcement of fundamental rights in the High Courts might take just few months or even weeks but at the Court of Appeal, could last for years thereby defeating the urgent hearing in an application for enforcement of fundamental rights actions, whereas, the Applicant continues to suffer injustice as a result of the delay. The Preamble to the FREPR makes fundamental rights suits to be treated urgently by the High Courts. See: Preamble 3(f) of the Preamble to the FREPR. Furthermore, the FREP Rules provides for the overriding objectives of the Rules which the Court shall give effect to in its Preamble thus ‘1. The Court shall constantly and conscientiously seek to give effect to the overriding objectives of these Rules at every stage of human rights action, especially whenever it exercises any power given to it by these Rules or any other law and whenever it applies or interprets any rule. 3. The overriding objectives of these Rules are as follows: (a) The Constitution, especially Chapter IV, as well as the African Charter, shall be expansively and purposely interpreted and applied, with a view to advancing and realising the rights and freedoms contained in them and affording the protections intended by them. (b) For the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, the Court shall respect municipal, regional and international bills of rights cited to it or brought to its attention or of which the Court is aware, whether these bills constitute instruments in themselves or form parts of larger documents like constitutions. Such bills include; (i.) The African Charter on Human and Peoples’ Rights and other Instruments (including protocols) in the African regional human rights system, (ii) The Universal Declaration of Human Rights and other instruments (including protocols) in the United Nations human rights system, (c) For the purpose of advancing but never for the purpose of restricting the applicant’s rights and freedoms, the Court may make consequential orders as may be just and expedient. (d) The Court shall proactively pursue enhanced access to justice for all classes of litigants, especially the poor, the illiterate, the uninformed, the vulnerable, the incarcerated, and the unrepresented.’ In the case of EMODI vs. THE REGISTERED TRUSTEES OF ASABA SPORTS CLUB & ORS. (2020) LCN/14601 (CA) “The Fundamental Rights Procedure was specially couched and enacted for the preservation of fundamental rights of any person within the shores of Nigeria, which rights are deeply entrenched in the Federal Constitution of Nigeria, 1999. The application was so couched and cannot be stayed or put down for another procedure…”. The effect of a Preamble in a statute has been held in the case of ‘OGBONNA v. AG OF IMO STATE & ORS (1992) LPELR-2287(SC) wherein the apex court considered among other issues, ‘The purpose of a preamble in a statute or written document; when a preamble will be resorted to’ thus “The purpose of the preamble in a statute or written document is to clarify any ambiguity in the words used in the enacting part. It does not control the plain words of the statute or document. As was stated by the Federal Supreme Court in Habib v. LEBD (1958) 3 FSC 109; (1958) SCNLR 434, “It is a cardinal rule of interpretation of statutes that the heading cannot control the plain words of the statutes; headings are only to be regarded where there is an ambiguity in the words of the Ordinance. Indeed, preambles and headings can only be relied upon to clarify ambiguity. They cannot be used so as to give a different meaning to the clear wording of a provision – See Olu of Warri v. Esi (1958) 3 FSC 94; (1958) SCNLR 384. Headings and preambles, which were originally disallowed, in interpreting statutes determination of the scope and intendment of the provisions of statutes. See Haines v. Herbert (1963) 1 WLR. 1401 at p.1404. This however, can only be done when the enacting or operative part of the statute is ambiguous. – See Osawaru v. Ezeiruka SC 362/76 (unreported); (1978) 6-7 S.C. 135; (1978) 1 L.R.N. 307. The heading cannot be used to modify the meaning of words which are plain, clear and unambiguous. – See U.T.C. Ltd. v. Pamotei & Ors. (1989) 3 SCNJ79 (1989) 2 NWLR (Pt 103) 244; Adebanjo & ors. v. Olowosago & Ors. (1988) 4 NWLR (Pt.88) 275;(1989) 9 SCNJ.78.” Per ADOLPHUS GODWIN KARIBI-WHYTE, JSC (Pp 56 – 57 Paras F – E). On the purport of the Preamble to the FREPR, the Court of Appeal of Nigeria, in the case of ‘OMONYAHUY & ORS v. IGP & ORS (2015) LPELR-25581(CA)’ also held thus ‘As for standing to sue; soon after the 1979 FREP Rules was made, the Supreme Court recognized the requirement of personal standing as fundamental for any action, including complaints of human rights abuse. It held that standing would be accorded to a Plaintiff, who shows that his rights/obligations have been, or are in danger of being violated, etc., and that the relevant person for determining standing was set out by Section 42(1) of the 1979 Constitution. Following this interpretation, Section 46(1) of the 1999 Constitution [similar to Section 42(1)] would accord standing only to the person, whose fundamental human rights are at issue; this was viewed as detrimental to Public Interest Litigation. These threshold principles denied access to genuine complaints of human rights abuse, and to ameliorate the situation, Kutigi, CJN acting on the power conferred on him by Section 46(3) of the 1999 Constitution made the 2009 FREP Rules, under which the present Application was filed. The salient amendments include abolition of application for leave to secure the enforcement of fundamental rights, the doctrine of locus standi and statutes of limitation, filing of verifying affidavit and that of service. The Preamble to the 2009 Rules sets out its overriding objectives, it reads –
- The Court shall constantly and conscientiously seek to give effect to the overriding objectives of these Rules at every stage of human rights action, especially whenever it exercises any power given it by these Rules or any other law and whenever it applies or interprets any rule.
- Parties and their legal representatives shall help the Court to further the overriding objectives of these Rules.
- The overriding objectives of these Rules are as Follows-
(a) The Constitution, especially Chapter IV, as well as the African Charter, shall be expansively and purposely Interpreted and applied, with a view to advancing and realizing the rights and freedoms contained in them and affording the protections intended by them.
(b) For the purpose of advancing but never for the purpose of restricting the Applicant’s rights and freedoms, the Court shall respect municipal, regional and international bills of rights cited to it or brought to its attention or of which the Court is aware, whether these bills constitute instruments in themselves or form parts of larger documents like Constitutions. Such bills include-
(i) The African Charter on Human Rights and Peoples Rights and other instruments (including protocols) in the African Regional Human Rights system.
(ii) The Universal Declaration of Human Rights and other instruments (including protocols) in the United Nations Human Rights System.
(c) For the purpose of advancing but never for the purpose of restricting the Applicant’s rights and freedoms, the Court may make consequential orders as may be just and expedient
(d) The Court shall proactively pursue enhanced access to justice for all classes or litigants, especially the poor, the illiterate, the uninformed, the vulnerable, the incarcerated, and the unrepresented.
(e) The Court shall encourage and welcome public interest litigations in the human rights field and no human rights case may be dismissed or struck out for want of locus standi. In particular, human rights activists, advocates or groups as well any non-governmental organizations, may institute human rights application of behalf of any potential Applicant. In human rights litigation, the Applicant may include any of the following-
(i) Anyone acting in his own interest
(ii) Anyone acting on behalf of another person
(iii) Anyone acting as a member of, or in the interest of a group or class of person. Anyone acting in the public interest and Association acting in the interest of its members or other individuals or groups
(f) The Court shall in a manner calculated to advance Nigerian democracy, good governance, human rights and culture, pursue the speedy and efficient enforcement and realization of human rights.
- Human rights suits shall be given priority in deserving cases, when there is any question as to the liberty of the Applicant or any person, the case shall be treated as an emergency.
As the Appellants submitted, Preambles are important and are used as aid to the construction of a statute. It restricts or extends the general language used in the body of the statute. See Halsbury’s Laws of England (3rd Ed.). Cranes on Statute (7th Ed.) and Sambo & Ors V. Okon & Ors (supra), where this Court per Tur, JCA., while emphasizing the purport of the preambles to the 2009 FREP Rules, adopted the observation of Lord Normand In Att-Gen. v. H.R.N Prince Ernest Agustus of Hanover [1957] A.C. 456. as follows – “When there is a Preamble, it is generally in its recital that the mischief to be remedied and the scope of the Act are described. It is therefore clearly permissible to have recourse to it as aid to constructing the enabling provisions…” One of the overriding objectives of the 2009 FREP Rules in Preamble 3(e) is “the Court shall encourage and welcome Public Interest Litigations”, and Public Interest Litigation means a legal action initiated in a Court of law for the enforcement of public interest or general interest in which the public or class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected. See Black’s Law Dictionary. Under Public Interest Litigation, it is not necessary that the Applicant has suffered some Injury of his own or has had personal grievance to litigate. Any person who alleges that any of the Fundamental Rights provided for in the Constitution or the African Charter on Human and Peoples Rights and to which the Applicant or some other potential Applicant is entitled, has been, is being, or is likely to be infringed may, apply to the Court in the State where the infringement occurs or is likely to occur, for redress. Public Interest Litigation is therefore a right given to the socially conscious member or a public spirited Non-Governmental Organization to espouse a public cause by seeking judicial redress of public injury. It is the device by which public participation in judicial review of administrative action is assured. See the decision of the Indian Supreme Court in PUDR [People’s Union for Democratic Rights] v. Union of India 1982 (2) S.C.C.253. In India, all people, irrespective of race, religion, caste or sex, have the right to move the Supreme Court and High Courts for the enforcement of their fundamental rights. Poor people may not have the means, and in the public interest, anyone can commence litigation in the Court on their behalf. High Court Judges have acted on their own on the basis of newspaper reports.’. (Underlining is mine for emphasis as to the need for speedy hearing of fundamental rights enforcement suit).
Furthermore, in SAMBO & ORS. v. SOLOMON ETIM OKON & ORS. (2013) LPELR–20394 (CA), TUR, JCA, (of blessed memory) held thus: “Paragraphs 3(a) – (b), (c), (f) & (g) of the Fundamental Rights (Enforcement Procedure) Rules, 2009 are very instructive in the determination of the issues in controversy …They are couched in the preamble as follows; “3. The overriding objective of these rules are as follows: (a) The constitution, especially Chapter IV, as well as the African Charter, shall be expansively and purposely interpreted and applied, with a view to advancing and realizing the rights and freedom contained in them and affording the protections intended by them. (b) for the purpose of advancing but never for the purpose of restricting the Applicants rights and freedom, the Court shall respect municipal, regional and international bills of rights cited to it or brought to its attention or of which the Court is aware, whether these bills constitute instruments in themselves or form parts of larger documents like Constitutions… (c) For the purpose of advancing but never for restricting the Applicants right and freedoms. The Court may make consequential orders as may be just and expedient…” (PP. 17–24, PARAS. B–A)’. Also, in the case of EMODI vs. THE REGISTERED TRUSTEES OF ASABA SPORTS CLUB & ORS. (supra), the Court held on the essence of an application for fundamental human right and held thus ‘in INSPECTOR GENERAL OF POLICE & ORS. v. PETER O. IKPILA & ANOR. (2015) LPELR–40630 (CA) to be thus: “…the true essence or import of the proceedings under the Fundamental Rights Enforcement Procedures Rules for the protection and enforcement of the fundamental rights of the citizen was very recently captured in the pronouncement of the Supreme Court in Jim Jaja V. COP Rivers State (Supra) at p. 66 where His Lordship, Muntaka–Coomassie, JSC, had waxed so succinctly thus: “The procedure for the enforcement of the fundamental human right was specially promulgated to protect the Nigerian’s fundamental right from abuse and violation by authorities and persons. When the breach of the right is proved, the person is entitled to compensation even if no specific amount is claimed.” (UNDERLINING MINE) per GEORGEWILL, JCA. (P. 69, PARAS. A–E). See also NWEKE & ORS. v. THE IGP & ORS. (2013) LPELR–21173 (CA) where it was held thus: “Fundamental Rights are not only basic to the citizens; they are rights that have been entrenched in Chapter IV of the 1999 Constitution of Federal Republic of Nigeria. These rights are sacrosanct and very important to everyone within the borders of Nigeria. These rights are moulded into freedom blocks that fence the citizen from forces of unbridled aggression, oppression, repression, and authoritarianism. Where these rights are to be enforced in Court the Court(sic) within reasonable limits must do all that is necessary to cause a flourishing of these rights” (UNDERLINING MINE) per ADAH, JCA. (P. 17, PARAS. D-G). Furthermore, the concept of Fundamental human rights has been defined by this honorable Court in STATMAK v. COP & ANOR. (2018) LPELR–46324 (CA): “Now, fundamental rights have been defined as basic moral guarantees that people in all countries and cultures allegedly have simply because they are people. In Ransome – Kuti Vs. Attorney General of the Federation (1985) 2 NWLR (PT. 6) 211 at 230, Eso, JSC, stated that a fundamental right “is a right which stands above the ordinary laws of the land and which are in fact antecedent to the political society itself” and “it is a primary condition to civilized existence”. Fundamental rights are rights derived from natural or fundamental law – Igwe Vs. Ezeanochie (2010) 7 NWLR (Pt. 1192) 61. The human person possesses rights because of the very fact that it is a person, a whole, master of itself and of his acts, and which consequently is not merely a means to an end but an end, an end which must be treated as such. Fundamental rights are rights which are owed to man because of the very fact that he is man. Human rights are frequently held to be universal in the sense that all people have and should enjoy them, and to be independent in the sense that they exist and are available as standards of justification and criticism whether or not they are recognized and implemented by the legal system or officials of a country. The moral doctrine of human rights aims at identifying the fundamental pre requisites for each human being leading a minimally good life – Hassan Vs. Economic and Financial Crimes Commission (2014) 1 NWLR (Pt. 1389) 607. The human rights law of Nigeria is contained, inter alia, in two major documents. These are the Constitution of the Federal Republic of Nigeria and the African Charter on Human and Peoples’ Rights, domesticated as the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap. 10 Laws of the Federation of Nigeria 1990. The 1999 Constitution guarantees what are called Fundamental Rights in its Chapter IV and the rights it enshrines are largely the traditional civil and political (libertarian) rights and freedoms. It is the duty of the Court to protect these rights – IGWE V. Ezeanochie (supra).” per ABIRU, JCA.(PP. 40–42, PARAS. B–A).’. The Court also held in BOBADE OLUTIDE & ORS. v. ADAMS HAMZAT & ORS. (2016) LPELR–26047 (CA): “Now, I understand, Human rights are moral principles or norms that describe certain standards of human behavior, and are regularly protected as legal rights in municipal and international Law. They are commonly understood as inalienable fundamental rights. These rights are based on the belief that everyone is equal and should have the same abilities and opportunities. Embedded in these rights are the abilities to understand another person’s feelings, experience and the rule of law. In other words, do unto others what you want done to yourself. Thereby it is safe to say that these rights impose an obligation on all persons as human beings to respect the human rights of others. However, these rights can be taken away though as a result of due process based on certain circumstances.” per DENTON–WEST, JCA. (PP. 11–12, PARAS. C–A). See also ALHAJI NOJIYA ISIYAKU & ANOR. v. COMMISSIONER OF POLICE, YOBE STATE (2017) LPELR–43439 (CA); WILLIAM & ANOR. v. USEN & ORS. (2018) LPELR–46163 (CA); NIGERIA CUSTOMS SERVICE BOARD v. MOHAMMED (2015) LPELR–25938 (CA); AGBAI & ORS. v. OKOGBUE (1991) LPELR – 225 (SC). It is also no doubt that the Rules of Court cannot even be used to supersede or override the clear provisions of the Fundamental Rights (Enforcement Procedure) Rules, 2009. In the case of ‘Nigeria Customs Service Board v. Mohammed (2015) LPELR-25938(CA) at Page 12-15, Para. D-B’, Abiru JCA said as follows: ‘It is, however, trite law that where the Fundamental Rights (Enforcement Procedure) Rules, 2009 make provision for a situation, the provisions of the High Court of Kaduna State Civil procedure Rules cannot be imported to supplant that provision – Ezeadukwa vs Maduka (1997) 8 NWLR (Pt.518) 635, Chukwuogor vs Chukwuogor (2006) & NWLR (Pt.979) 302.’.
Also, the Court recognizes the Preamble to the FREPR as being having powerful influence and beyond the normal Preamble in a statute in the case of ‘HUMAN RIGHTS & EMPOWERMENT PROJECT LTD/GTE v. PRESIDENT OF FRN & ORS (2022) LPELR-58230(CA)’ thus “what is public interest within the meaning of the provisions of the Fundamental Rights (Enforcement Procedure) Rules 2009 and was the Appellant’s Suit one within the contemplation of a ‘public interest litigation’ By Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009, ‘Public Interest’ is defined as including: “The interest of Nigerian society or any segment of it in promoting human rights and advancing human rights law.” My Lords, looking at the facts of this case in respect of the capacity and core mandate of the Appellant, which were largely unchallenged, and having considered the succinct provisions of the Fundamental Rights (Enforcement Procedure) Rules 2009, and keeping in mind the preamble to the said Rules, it does appear to me, and I so hold, that in application for the enforcement of fundamental rights of the citizen under Chapter IV of the Constitution of Nigeria 1999 (as amended) and by virtue of the provisions of the Fundamental Rights (Enforcement Procedure) Rules 2009, the general requirement of locus standi has indeed been done away. Thus, the Appellant an undisputed human rights Non – Governmental Organization with the core mandate of promoting, defending and protecting human rights of the citizens of this country, through public interest litigation etc., is in my finding and I so firmly hold, empowered by law pursuant to the provisions of Fundamental Rights (Enforcement Procedure) Rules 2009, to institute and maintain this Suit against the Respondent as a Public interest litigation for the enforcement of the Fundamental rights of the members and residents of Nimo Village. After all for a better society to take root in this country, we must all begin, if we are not yet, to be our brothers and sisters’ keepers! See Fawehinmi V. Akilu (1987) 4 NWLR (Pt. 67) 797, where the Supreme Court per Obaseki JSC, had reiterated succinctly inter alia thus: “Since we are all brothers in the society, we are our brother’s keepers. If we pause a little and cast our minds to the happenings in the world, the rationale for this rule will become apparent.” See also Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules 2009, Paragraph 3 (e) of the Preamble to the Fundamental Rights (Enforcement Procedure) Rules 2009, Fawehinmi V. The President (2008) 23 WRN 65. My Lords, carefully reading through the provisions of the Fundamental Rights (Enforcement Procedure) Rules 2009, particularly Paragraph 3 (e) of the Preamble to the Fundamental Rights (Enforcement Procedure) Rules 2009, the more it becomes apparent to me that it has in matters of enforcement of the provisions of Chapter IV of the Constitution of Nigeria 1999 (as amended) clearly and legally expanded the frontiers of public interest litigation in Nigeria for the protection and enforcement of the fundamental rights of the Citizen. I therefore cannot but agree with the apt and unassailable submission of learned counsel for the Appellant, subject however to my consideration later of the subject matter of the Appellant’s Suit as to whether the claims are founded on alleged infringement of any of the provisions of Chapter IV of the Constitution of Nigeria 1999 (as amended), that in public interest litigation for the enforcement of fundamental rights of the citizen there is in law no longer any need for any express permission, authorization or consent from either the victim of human right abuse or his relatives to validate an application for the enforcement of any of the fundamental rights as constitutionally guaranteed to the citizens. See Section 46 (1 – 3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). It is therefore very clear to me, and I so firmly hold, that the lower Court had, despite the clear provisions of the Fundamental Rights (Enforcement Procedure) Rules 2009 reducing to non-existence the requirement of locus standi as it operates and governs other civil proceedings in proceedings for enforcement of any of the provisions of Chapter IV of the Constitution of Nigeria 1999 (as amended), unwittingly insisted on the application of the concept of locus standi in proceedings for the enforcement of Chapter IV of the Constitution of Nigeria 1999 (as amended) contrary to the very clear and unambiguous provisions of the governing rules of procedure. I think that was a grave error on the part of the lower Court, and must have resulted from the failure to appreciate that the procedure for enforcement of Chapter IV of the Constitution of Nigeria 1999 (as amended) is a special procedure unique to only this procedure and none other. In other words, the provisions of the Fundamental Rights (Enforcement Rules) 2009 governs exclusively the proceedings in action for the enforcement of Chapter IV of the Constitution of Nigeria 1999 (as amended). It follows therefore, whatever procedure is validated under the said Rules is valid and should be given effect to by the Court for the enforcement and protection of the fundamental rights of the citizen. The lower Court, regrettably missed this point when it proceeded to dismiss the Appellant’s Suit merely on account of locus standi contrary to the provisions of the said Rules which validates public interest litigation for the enforcement of the fundamental rights of the citizen either by themselves or on their behalf. The Appellant’s Suit was therefore, not rendered incompetent by reason of lack of locus standi as the Appellant is clothed with the requisite locus standi to institute and maintain the Suit against the Respondents.” Per BIOBELE ABRAHAM GEORGEWILL, JCA (Pp 15 – 20 Paras C – B)’. (Underlining is mine for emphasis).
Now, Section 46(3) of the Constitution has conferred the powers to make Rules for High Court on practice and procedure in a fundamental rights enforcement actions or suits (with the exclusion of the appellate courts) thus ‘(3) The Chief Justice of Nigeria may make rules with respect to the practice and procedure of a High Court for the purposes of this section.’. This in my humble view, limits the powers of the CJN to make rules for the Court of Appeal and the Supreme Court of Nigeria respectively in regard to the fundamental rights enforcement suits arising from the High courts, hence, in my humble submission, it makes a gap or inadequacy in a fundamental rights enforcement proceedings. The Supreme Court in the case of Olofu v. Itodo (2010) 18 NWLR (Pt. 1225) 545 at 585 paras. F – G held thus: “I must remark here that in the interpretation of any statute or instrument, the object is to ascertain the intention of the legislature that had drawn it. The cardinal principle is that parties are presumed to intend what they have in fact said or written down.” This shows that the Courts in the course of interpreting the provisions of a statute or any document are basically trying to give effect the intention of the draftsmen of the statutes or documents. The words used in statutes and legal instruments are to be construed literally i.e. by giving the words their ordinary grammatical meaning. See the case of Global Excellence Comm. Ltd v Donald Duke (2007) 16 NWLR (Pt. 1059) 22, in respect of Section 308(1)(a) of the Constitution. Furthermore, in my humble submission, the principle that should be considered for the purpose of section 46(3) of the Constitution vis-à-vis this paper is ‘The maxim expressio unius personae vel re est exclusio alterius’ which simply means ‘the express mention of one thing is the exclusion of others’. See the case of Ehuwa v O.S.I.E.C & 3 Ors (2006) 18 NWLR (Pt. 1012) 544 at 568 – 569. A good example of this principle is the provisions of Section 284(1) of the Investments and Securities Act, 2007(“ISA”) and the case of Okorocha v U.B.A Plc & Ors (2011) 1 NWLR (Pt. 1228) 348. Where the list of persons or things listed in the statute are mentioned as an example, this principle will not apply. The Supreme Court reiterated this principle in the case of A-G Ondo State v A-G Ekiti State (2001) 17 NWLR (Pt. 743) 707 at 768, and in the case of section 46(3) of the Constitution, only ‘High Court’ is mentioned and the draftsmen of the Constitution know or are presumed to know that the jurisdiction of the High, Court of Appeal and the Supreme Court is respectively different, hence chose the clear words ‘High Court’. Therefore, since the section 46(3) of the Constitution mentions specifically ‘High Court’, it is my humble submission that only ‘High Court’ is intended and not including ‘Court of Appeal’ and or the ‘Supreme Court’. Hence, the need and or recommendation by this paper appealing to the National Assembly to initiate a constitutional amendment in that regard permitting and or conferring powers on the CJN to also make his Rules covering appeals arising from the fundamental rights enforcement suits arising from the High Courts to either the Court of Appeal or the Supreme Court for a manifest justice. Therefore, in this regard, and of course in achieving this purpose of amendment relating to Chapter IV of the Constitution especially section 46(3) of the Constitution, it means the provisions of section 9(1) and (3) of the Constitution has to be invoked which provides thus ‘9.—(1) The National Assembly may, subject to the provisions of this section, alter any of the provisions of this Constitution… (3) An Act of the National Assembly for the purpose of altering the provisions of this section, section 8, or Chapter IV of this Constitution shall not be passed by either House of the National Assembly unless the proposal is approved by the votes of not less than four-fifths majority of all the members of each House, and also approved by a resolution of the House of Assembly of not less than two-thirds of all the States.’.
Finally, therefore, I humble appeal to the National Assembly to consider the humble appeal made by this paper and to bring to effect, the recommendation as made by this paper appealing to the National Assembly to initiate a constitutional amendment in that regard permitting and or conferring powers on the CJN to also make his Rules covering appeals arising from the fundamental rights enforcement suits arising from the High Courts to either the Court of Appeal or the Supreme Court for a manifest justice. I also encourage human rights activists and the Nigerian Bar Association to canvass for the amendment towards the realization and or actualization of the recommendation made by this paper appealing to the National Assembly to initiate a constitutional amendment in that regard permitting and or conferring powers on the CJN to also make his Rules covering appeals arising from the fundamental rights enforcement suits arising from the High Courts to either the Court of Appeal or the Supreme Court for a manifest justice.
Email: hameed_ajibola@yahoo.com 08168292549.
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